Aaron Swartz's FOIA Requests Shed Light on His Struggle

UPDATE: On Friday, January 18, two days after the publication of this report, Sen. John Cornyn, R-Texas, sent a letter to Attorney General Eric Holder asking whether "the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act."

The 50 State Quarters Program report Swartz cited in his November 24 FOIA request said the US Mint "shipped 34.3 billion quarter-dollar coins to the Federal Reserve Banks (FRB), generating $8.6 billion in revenue and nearly $6.3 billion in seigniorage, which helps finance the national debt."

"The United States Mint estimated it shipped 16.3 billion more coins to the FRB than it would have in the absence of the Program. Consequently, the Agency attributes $4.1 billion in revenue and $3.0 billion in seigniorage solely to the 50 State Quarters Program," according to the report. "The sale of 50 State Quarters numismatic products generated another $470.1 million in revenue and $136.2 million in earnings and seigniorage."

It's unknown what Swartz had hoped to do with the information if and when he received the survey results. Swartz's request remains open, according to Muckrock, a transparency web site that streamlines the FOIA request process for journalists and the public. Swartz used Muckrock's service to request records under FOIA 17 times between 2010 and 2012.

Michael Morisy, the founder of Muckrock, who met Swartz in 2010 after Morisy launched the site, told Truthout they spoke regularly about a number of Swartz's FOIA requests "but not that one in particular."

Perhaps the boy genius who founded a software company that merged with the popular social networking web site Reddit was hoping to come up with a solution to the country's financial woes and use the statistics in the government report to show why an idea to mint a platinum trillion-dollar coin as a means of dealing with the federal debt ceiling could be even bigger than the 50 State Quarters Program. Last week, he took to Twitter and urged his followers to "save the country" and "sign the platinum coin petition."

Swartz hanged himself with his belt in his Brooklyn, New York home on Friday. He was 26. He had battled depression and in years past had publicly written about thoughts of suicide. He did not leave a suicide note, according to police.

While his supporters, family and friends come to grips with the tragic loss of such a gifted young computer programmer, who at 14, developed an early version of Really Simple Syndication, or RSS, which allowed blogs and news web sites to easily share their content, a peek at the FOIA requests Swartz filed over the past two years sheds a little light on his struggles.

Although a majority of his FOIA requests were self-serving and appear to be connected to law enforcement investigations into his activities, it is also clear that the information he sought, particularly in areas of government surveillance, would have greatly benefited the public. However, his efforts to pry loose materials from a highly secretive administration were mostly unsuccessful.

On the Government's Radar

Swartz filed his first FOIA request in December 2010, more than two years after he landed on the government's radar. He was seeking information about himself.

In 2008, Swartz's friend and fellow open government activist Carl Malamud, the founder of the nonprofit public.resource.org, wanted to make federal court documents housed on the Public Access to Court Electronic Records system (PACER) available to the public for free. Using $600,000 he raised from supporters, Malamud purchased 50 years worth of appellate court documents and posted them on his website.

Then, the government started a pilot program in which access to federal court documents on PACER would be made available to users at no cost at 17 libraries around the country. Malamud urged activists like Swartz to visit the libraries, download the documents and send it over to him so he could make it availble to the public via his website.

"So Aaron went to one of them and installed a small PERL script he had written that cycled sequentially through case numbers, requesting a new document from Pacer every three seconds, and uploading it to" Amazon's Elastic Compute (EC2) Cloud server, Wired reported. "Aaron pulled nearly 20 million pages of public court documents, which are now available for free on the Internet Archive."

On December 10, 2010, Swartz filed a FOIA request with the Justice Department's Criminal Division seeking "documents related to me, Aaron Swartz, as well as any documents related to any associated PACER investigation." The Justice Department said responded by stating it could not locate any records. He also filed an identical FOIA request that day with the Executive Office of United States Attorneys. The office identified 72 documents that were withheld in full.

Also on December 10, Swartz filed a FOIA request with the Food and Drug Administration (FDA) seeking "All clinical trial information, including the medical and statistical reviews of New Drug Applications." The FDA said his request was too broad. Swartz narrowed it and asked for "the list or log that includes all names of drugs which the FDA has already processed and prepared for public release all the submitted medical and statistical new drug reviews. [sic]" The FDA told Swartz he could find that information on the agency's website. It's unknown why Swartz was so interested in the data.

Indicted

Two years ago, Swartz was indicted on federal wire and computer fraud charges for allegedly downloading illegally more than 4 million journal articles and documents from JSTOR, a subscription database of journal articles, by breaking into a wiring closet in the basement of a research building at the Massachusetts Institute of Technology (MIT), according to court documents, connecting a laptop to the university's network and uploading the academic articles to Amazon's cloud server. Swartz intended to share the expensive articles with the public. Swartz was not a student or a member of the MIT faculty. He was a fellow at Harvard University's ethics center.

This time the government aggressively pursued Swartz, even after he turned over hard drives containing the articles and JSTOR said it was not interested in pursuing the matter further. His trial was due to start in April. He faced $1 million in fines and decades in prison if convicted.

Any records requests made to Amazon and any responses from Amazon in connection with any such requests. This includes subpoenas, warrants, 2703 orders, National Security Letters, etc.

In addition, I request any guidelines, policies, advice, or procedures related to using data stored by Amazon for investigations, data-collection, and surveillance. For example, any guides or advice to law enforcement akin to the "AOL Inc. Law Enforcement Manual" or "Facebook Law Enforcement Guidelines" would be included by this request.

In particular, I request the response from Amazon to a Grand Jury subpoena as included in an email from Eric Wenger dated Nov 4, 2008 and labeled "Amazon_GJS_Response.pdf". Since it pertains to me, I request this information under the Privacy Act as well as the Freedom of Information Act.

He also sought from the government "any policies, procedures, or guides for using data stored by Google for investigations, data-collection, and surveillance. He received a response that said his request was too broad. He never bothered to narrow his request. The Justice Department responded to Swartz's Amazon FOIA a year later by stating that he needed to clarify his request and identify specific records he was seeking. Swartz gave up on that one as well.

A week before he filed the FOIAs, Swartz exchanged emails with Christopher Soghoian, a security and privacy researcher at the American Civil Liberties Union, asking him to provide feedback about a blog post he was considering publishing: "Is the Government Snooping On Your EC2 Instance?" While Swartz's post raised a number of important privacy and security questions, he was clearly concerned about how the government was obtaining information about him without his knowledge.

When I heard that the government had [ordered Twitter to turn over data about its users], I got real interested in the legal techniques for getting people's private data," Swartz wrote. "I've spent the past few months talking to lawyers, policy experts, and executives at online service providers about how the rules work and what protections they afford. What I've found is that ­­- incredibly -­­ anyone who's filed a lawsuit can order online service providers to turn over just about anything." (And the government doesn't even need to file a lawsuit.) But most major online service providers warn you before they hand over your data and give you a chance to challenge the order in court. Google, Yahoo, and Twitter all send their users emails with a copy of the request and instructions on how to challenge it.

What are Amazon's policies? I've had several conversations with them about this, but they refuse to comment on the record. Still, I'm in the rare position of getting to experience them first­hand. A couple years ago the government sent Amazon a subpoena for information about an EC2 instance I'd purchased. Amazon handed it over without stopping to warn me. When I asked them about it specifically, they refused to comment. When I asked them about their general policy, they refused to comment. The only reason I found out about it was because I filed a FOIA request with the Department of Justice. The DOJ was more transparent about this than Amazon.

As best as I can tell, this is Amazon's policy: When the government asks, turn stuff over. Never tell the people affected. Don't give them a chance to object.

In a message on the same email thread, Soghoian questioned the accuracy of Swartz's finding that "anyone" could obtain such information, citing a provision in the Electronic Communications Privacy Act that prohibits disclosure of content to anyone but the government. Still, in his email to Soghoian, Swartz said he could not publish the article under his name "for personal reasons." He did not elaborate. Swartz's attorney did not return calls from Truthout seeking comment. Soghoian also did not respond to email requests for comment.

It appears Swartz did not obtain a Privacy Act waiver from Soghoian authorizing the FBI to turn records over to him. His FOIA request was denied.

Why the government was so determined to punish Swartz is a mystery. The Huffington Post reported that Swartz's attorney, Elliot Peters, said that the assistant US attorney in Massachusetts prosecuting the case, Stephen Heymann, was looking for "some juicy computer crime cases and Aaron's case, sadly for Aaron, fit the bill."

Peters said Heymann believed prosecuting Swartz would be good for his career. Heymann thought he "was going to receive press and he was going to be a tough guy and read his name in the newspaper," Peters told The Huffington Post.

Over the weekend, Swartz's family issued a statement and said Swartz's death "is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death."

"He Wanted to See Something Done Differently"

Swartz's interests were wide-ranging. A day after President Obama announced that Osama Bin Laden was killed, Swartz filed a FOIA with the Department of the Navy, which the Navy later referred to United States Special Operations Command, for "any photos or videos from the 2011 operation to capture or kill" the Al-Qaeda leader.

But Morisy, the Muckrock founder, said Swartz was particularly disturbed by actions on the part of Immigrations and Customs Enforcement (ICE) that led to the seizure of dozens of Internet domain names. He filed a FOIA with the agency on December 10, 2010, the same day he sought information from the Justice Department on himself, in hopes of prying loose documents about its actions.

"That really bothered him," Morisy said about the domain name seizures. "He felt it was politicized. He was just really upset that the government could come in and do this."

Morisy said he was working on an appeal for Swartz to send to ICE, a draft of which was ready at the time of his death last week. He added that Swartz expressed some interest in working with advocacy organizations, such as the Electronic Frontier Foundation (EFF), to "raise awareness about these issues and effect change."

"It wasn't just a curiosity for him," Morisy said about Swartz's FOIA requests. "He wanted to see something done differently."

Free Speech Advocate

Swartz also sought government records related to Pfc. Bradley Manning, the Army intelligence analyst accused of leaking hundreds of thousands of State Department cables and other documents to WikiLeaks. Specifically, Swartz's December 27, 2010 FOIA request asked the Marine Corps to "please process as quickly as possible a request for the government-curated audio tapes created in Quantico brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm.

"These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records," Swartz wrote. He filed the same request with the Army Criminal Investigative Service on February 9, 2011. Both requests were denied because the "requested documents are part of an ongoing Army court-martial litigation are not releasable to the public at this time."

House is a founding member of the Bradley Manning Support Network who helped raise awareness about the conditions of Manning's detention, which a military judge recently ruled was illegal. In June 2011, House was subpoeaned to appear before a federal grand jury in Alexandria, Virginia, which is reportedly investigating Wikileaks and associations a group of Boston-area hackers may have had with Wikileaks founder Julian Assange and/or Manning.

House declined to comment about Swartz's FOIA. But the Internet activist appears to have made the request in response to a blog post House published at Firedoglake on December 23, 2010 following a visit he made to Manning, who at the time was being held at Marine Corps Base Quantico. In his post, House wrote, "No notepads, pens, phones, tape recorders, or other useful documentation devices are allowed into the brig's visitation rooms ... I encourage any curious parties to file an FOIA request for the government-curated audio tapes created in brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm."

Morisy said Swartz "was very interested in due process and the freedom of speech issues." That certainly appeared to be the common thread in all of his FOIA requests.

But it was also deeply personal for Swartz.

Indeed, one of his FOIA requests sought from the United States Secret Service, "Any records on the procedures the Secret Service uses for reading encrypted hard disks." Swartz, who filed the records request on February 28, 2011, was still waiting for the Secret Service to locate responsive records at the time of his death.

Jason Leopold is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit jasonleopold.com for a preview. His most recent investigative report, "From Hopeful Immigrant to FBI Informant: The Inside Story of the Other Abu Zubaidah," is now available as an ebook. Follow Jason on Twitter: @JasonLeopold.

Aaron Swartz's FOIA Requests Shed Light on His Struggle

UPDATE: On Friday, January 18, two days after the publication of this report, Sen. John Cornyn, R-Texas, sent a letter to Attorney General Eric Holder asking whether "the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act."

The 50 State Quarters Program report Swartz cited in his November 24 FOIA request said the US Mint "shipped 34.3 billion quarter-dollar coins to the Federal Reserve Banks (FRB), generating $8.6 billion in revenue and nearly $6.3 billion in seigniorage, which helps finance the national debt."

"The United States Mint estimated it shipped 16.3 billion more coins to the FRB than it would have in the absence of the Program. Consequently, the Agency attributes $4.1 billion in revenue and $3.0 billion in seigniorage solely to the 50 State Quarters Program," according to the report. "The sale of 50 State Quarters numismatic products generated another $470.1 million in revenue and $136.2 million in earnings and seigniorage."

It's unknown what Swartz had hoped to do with the information if and when he received the survey results. Swartz's request remains open, according to Muckrock, a transparency web site that streamlines the FOIA request process for journalists and the public. Swartz used Muckrock's service to request records under FOIA 17 times between 2010 and 2012.

Michael Morisy, the founder of Muckrock, who met Swartz in 2010 after Morisy launched the site, told Truthout they spoke regularly about a number of Swartz's FOIA requests "but not that one in particular."

Perhaps the boy genius who founded a software company that merged with the popular social networking web site Reddit was hoping to come up with a solution to the country's financial woes and use the statistics in the government report to show why an idea to mint a platinum trillion-dollar coin as a means of dealing with the federal debt ceiling could be even bigger than the 50 State Quarters Program. Last week, he took to Twitter and urged his followers to "save the country" and "sign the platinum coin petition."

Swartz hanged himself with his belt in his Brooklyn, New York home on Friday. He was 26. He had battled depression and in years past had publicly written about thoughts of suicide. He did not leave a suicide note, according to police.

While his supporters, family and friends come to grips with the tragic loss of such a gifted young computer programmer, who at 14, developed an early version of Really Simple Syndication, or RSS, which allowed blogs and news web sites to easily share their content, a peek at the FOIA requests Swartz filed over the past two years sheds a little light on his struggles.

Although a majority of his FOIA requests were self-serving and appear to be connected to law enforcement investigations into his activities, it is also clear that the information he sought, particularly in areas of government surveillance, would have greatly benefited the public. However, his efforts to pry loose materials from a highly secretive administration were mostly unsuccessful.

On the Government's Radar

Swartz filed his first FOIA request in December 2010, more than two years after he landed on the government's radar. He was seeking information about himself.

In 2008, Swartz's friend and fellow open government activist Carl Malamud, the founder of the nonprofit public.resource.org, wanted to make federal court documents housed on the Public Access to Court Electronic Records system (PACER) available to the public for free. Using $600,000 he raised from supporters, Malamud purchased 50 years worth of appellate court documents and posted them on his website.

Then, the government started a pilot program in which access to federal court documents on PACER would be made available to users at no cost at 17 libraries around the country. Malamud urged activists like Swartz to visit the libraries, download the documents and send it over to him so he could make it availble to the public via his website.

"So Aaron went to one of them and installed a small PERL script he had written that cycled sequentially through case numbers, requesting a new document from Pacer every three seconds, and uploading it to" Amazon's Elastic Compute (EC2) Cloud server, Wired reported. "Aaron pulled nearly 20 million pages of public court documents, which are now available for free on the Internet Archive."

On December 10, 2010, Swartz filed a FOIA request with the Justice Department's Criminal Division seeking "documents related to me, Aaron Swartz, as well as any documents related to any associated PACER investigation." The Justice Department said responded by stating it could not locate any records. He also filed an identical FOIA request that day with the Executive Office of United States Attorneys. The office identified 72 documents that were withheld in full.

Also on December 10, Swartz filed a FOIA request with the Food and Drug Administration (FDA) seeking "All clinical trial information, including the medical and statistical reviews of New Drug Applications." The FDA said his request was too broad. Swartz narrowed it and asked for "the list or log that includes all names of drugs which the FDA has already processed and prepared for public release all the submitted medical and statistical new drug reviews. [sic]" The FDA told Swartz he could find that information on the agency's website. It's unknown why Swartz was so interested in the data.

Indicted

Two years ago, Swartz was indicted on federal wire and computer fraud charges for allegedly downloading illegally more than 4 million journal articles and documents from JSTOR, a subscription database of journal articles, by breaking into a wiring closet in the basement of a research building at the Massachusetts Institute of Technology (MIT), according to court documents, connecting a laptop to the university's network and uploading the academic articles to Amazon's cloud server. Swartz intended to share the expensive articles with the public. Swartz was not a student or a member of the MIT faculty. He was a fellow at Harvard University's ethics center.

This time the government aggressively pursued Swartz, even after he turned over hard drives containing the articles and JSTOR said it was not interested in pursuing the matter further. His trial was due to start in April. He faced $1 million in fines and decades in prison if convicted.

Any records requests made to Amazon and any responses from Amazon in connection with any such requests. This includes subpoenas, warrants, 2703 orders, National Security Letters, etc.

In addition, I request any guidelines, policies, advice, or procedures related to using data stored by Amazon for investigations, data-collection, and surveillance. For example, any guides or advice to law enforcement akin to the "AOL Inc. Law Enforcement Manual" or "Facebook Law Enforcement Guidelines" would be included by this request.

In particular, I request the response from Amazon to a Grand Jury subpoena as included in an email from Eric Wenger dated Nov 4, 2008 and labeled "Amazon_GJS_Response.pdf". Since it pertains to me, I request this information under the Privacy Act as well as the Freedom of Information Act.

He also sought from the government "any policies, procedures, or guides for using data stored by Google for investigations, data-collection, and surveillance. He received a response that said his request was too broad. He never bothered to narrow his request. The Justice Department responded to Swartz's Amazon FOIA a year later by stating that he needed to clarify his request and identify specific records he was seeking. Swartz gave up on that one as well.

A week before he filed the FOIAs, Swartz exchanged emails with Christopher Soghoian, a security and privacy researcher at the American Civil Liberties Union, asking him to provide feedback about a blog post he was considering publishing: "Is the Government Snooping On Your EC2 Instance?" While Swartz's post raised a number of important privacy and security questions, he was clearly concerned about how the government was obtaining information about him without his knowledge.

When I heard that the government had [ordered Twitter to turn over data about its users], I got real interested in the legal techniques for getting people's private data," Swartz wrote. "I've spent the past few months talking to lawyers, policy experts, and executives at online service providers about how the rules work and what protections they afford. What I've found is that ­­- incredibly -­­ anyone who's filed a lawsuit can order online service providers to turn over just about anything." (And the government doesn't even need to file a lawsuit.) But most major online service providers warn you before they hand over your data and give you a chance to challenge the order in court. Google, Yahoo, and Twitter all send their users emails with a copy of the request and instructions on how to challenge it.

What are Amazon's policies? I've had several conversations with them about this, but they refuse to comment on the record. Still, I'm in the rare position of getting to experience them first­hand. A couple years ago the government sent Amazon a subpoena for information about an EC2 instance I'd purchased. Amazon handed it over without stopping to warn me. When I asked them about it specifically, they refused to comment. When I asked them about their general policy, they refused to comment. The only reason I found out about it was because I filed a FOIA request with the Department of Justice. The DOJ was more transparent about this than Amazon.

As best as I can tell, this is Amazon's policy: When the government asks, turn stuff over. Never tell the people affected. Don't give them a chance to object.

In a message on the same email thread, Soghoian questioned the accuracy of Swartz's finding that "anyone" could obtain such information, citing a provision in the Electronic Communications Privacy Act that prohibits disclosure of content to anyone but the government. Still, in his email to Soghoian, Swartz said he could not publish the article under his name "for personal reasons." He did not elaborate. Swartz's attorney did not return calls from Truthout seeking comment. Soghoian also did not respond to email requests for comment.

It appears Swartz did not obtain a Privacy Act waiver from Soghoian authorizing the FBI to turn records over to him. His FOIA request was denied.

Why the government was so determined to punish Swartz is a mystery. The Huffington Post reported that Swartz's attorney, Elliot Peters, said that the assistant US attorney in Massachusetts prosecuting the case, Stephen Heymann, was looking for "some juicy computer crime cases and Aaron's case, sadly for Aaron, fit the bill."

Peters said Heymann believed prosecuting Swartz would be good for his career. Heymann thought he "was going to receive press and he was going to be a tough guy and read his name in the newspaper," Peters told The Huffington Post.

Over the weekend, Swartz's family issued a statement and said Swartz's death "is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death."

"He Wanted to See Something Done Differently"

Swartz's interests were wide-ranging. A day after President Obama announced that Osama Bin Laden was killed, Swartz filed a FOIA with the Department of the Navy, which the Navy later referred to United States Special Operations Command, for "any photos or videos from the 2011 operation to capture or kill" the Al-Qaeda leader.

But Morisy, the Muckrock founder, said Swartz was particularly disturbed by actions on the part of Immigrations and Customs Enforcement (ICE) that led to the seizure of dozens of Internet domain names. He filed a FOIA with the agency on December 10, 2010, the same day he sought information from the Justice Department on himself, in hopes of prying loose documents about its actions.

"That really bothered him," Morisy said about the domain name seizures. "He felt it was politicized. He was just really upset that the government could come in and do this."

Morisy said he was working on an appeal for Swartz to send to ICE, a draft of which was ready at the time of his death last week. He added that Swartz expressed some interest in working with advocacy organizations, such as the Electronic Frontier Foundation (EFF), to "raise awareness about these issues and effect change."

"It wasn't just a curiosity for him," Morisy said about Swartz's FOIA requests. "He wanted to see something done differently."

Free Speech Advocate

Swartz also sought government records related to Pfc. Bradley Manning, the Army intelligence analyst accused of leaking hundreds of thousands of State Department cables and other documents to WikiLeaks. Specifically, Swartz's December 27, 2010 FOIA request asked the Marine Corps to "please process as quickly as possible a request for the government-curated audio tapes created in Quantico brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm.

"These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records," Swartz wrote. He filed the same request with the Army Criminal Investigative Service on February 9, 2011. Both requests were denied because the "requested documents are part of an ongoing Army court-martial litigation are not releasable to the public at this time."

House is a founding member of the Bradley Manning Support Network who helped raise awareness about the conditions of Manning's detention, which a military judge recently ruled was illegal. In June 2011, House was subpoeaned to appear before a federal grand jury in Alexandria, Virginia, which is reportedly investigating Wikileaks and associations a group of Boston-area hackers may have had with Wikileaks founder Julian Assange and/or Manning.

House declined to comment about Swartz's FOIA. But the Internet activist appears to have made the request in response to a blog post House published at Firedoglake on December 23, 2010 following a visit he made to Manning, who at the time was being held at Marine Corps Base Quantico. In his post, House wrote, "No notepads, pens, phones, tape recorders, or other useful documentation devices are allowed into the brig's visitation rooms ... I encourage any curious parties to file an FOIA request for the government-curated audio tapes created in brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm."

Morisy said Swartz "was very interested in due process and the freedom of speech issues." That certainly appeared to be the common thread in all of his FOIA requests.

But it was also deeply personal for Swartz.

Indeed, one of his FOIA requests sought from the United States Secret Service, "Any records on the procedures the Secret Service uses for reading encrypted hard disks." Swartz, who filed the records request on February 28, 2011, was still waiting for the Secret Service to locate responsive records at the time of his death.

Jason Leopold is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit jasonleopold.com for a preview. His most recent investigative report, "From Hopeful Immigrant to FBI Informant: The Inside Story of the Other Abu Zubaidah," is now available as an ebook. Follow Jason on Twitter: @JasonLeopold.